Weekly Law Update on Florida Divorce & Child Custody Cases

Weekly summaries of decisions made by Florida Court of Appeals on actual divorce, child custody, child support and alimony cases.  

Florida Divorce & Family Law Update for Week Ending July 19, 2015

Below are summaries of recent decisions from Florida's appellate courts on Florida divorce and family law issues.  Clicking on the case name allows you to view the appellate opinion described in the analysis below.  These summaries are courtesy of Bruce Law Firm, P.A., a law firm limited to representation of clients in the mediation, litigation and appeals of Florida marital and family law matters.  The firm also created and maintains the family law focused appellate resources website DivorceCourtAppeals.com.


Case:              Fosshage v. Fosshage
Court:            Third District Court of Appeal.
Trial Judge:   Tegan Slaton.
Attorneys:     Samuel J. Kaufman, Lawrence E. Harkenrider, Jiulio Margalli.
Issues:            Time-sharing, Modification (Permanent Residence). 

Holding:      Under Florida Statutes (2013), there is a clear distinction between modification based on changed circumstances and modification based on relocation. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child. In determining whether a change in circumstances has occurred, a trial court must consider a statutorily enumerated list of factors. A petition for relocation, on the other hand, requires a different procedure with specific statutory requirements governing the content of the petition, service on the other parent, burdens of proof, and factors to be considered by the court.

 In this case, the trial court erred in treating what was a petition for relocation as a change in circumstances and therefore did not adhere to or consider the correct process and factors. The appeals court reversed and remanded for the proper proceedings.
 


Case:              Dravis v. Dravis
Court:            Second District Court of Appeal.
Trial Judge:   Keith Spoto.
Attorneys:     Jean Marie Henne, Shelley Harrell Shelton.
Issues:            Marital Assets, Equitable Distribution. 

Holding:         Cash Gifts 
An appeals court will review de novo a trial court's characterization of an asset as marital or nonmarital, and any factual findings necessary to make this legal conclusion, for competent, substantial evidence. Nonmarital assets may lose their nonmarital character where they have been commingled with marital assets. This is especially true with respect to money because money is fungible, and once commingled, loses its separate character. It is irrelevant that a bank account is titled in the name of one Former Spouse, alone, as it may become marital if both marital and nonmarital funds are commingled in that account. It is not necessary for commingled funds to be used to pay marital expenses in order to be treated as entirely marital; it is enough that the funds be commingled.

Dissipated Proceeds

The appeals court reviews a trial court's equitable distribution decisions for abuse of discretion and examines its valuation of marital assets to determine whether it is supported by competent, substantial evidence. Generally, it is error to include in an equitable distribution scheme any assets that have been diminished or dissipated during the dissolution proceedings. The exception, however, is where misconduct during the divorce case results in the dissipation of a marital asset. To determine whether such misconduct occurred, the trial court must assess whether one spouse used marital funds for a purpose unrelated to the marriage at a time when the marriage was undergoing an irreconcilable breakdown. Further, such misconduct must be supported by the record evidence, and by specific factual findings of the trial court.

In this case, the trial court did not err in its determination as to misconduct and characterization of marital assets. The trial court did, however, err regarding the equitable distribution of the parties' marital assets. Competent, substantial evidence demonstrated that certain nonmarital assets (being the proceeds of monetary gifts to the Former Wife) were commingled with proceeds that were marital assets. The monetary gifts therefore lost their nonmarital character and became marital assets subject to equitable distribution. However, the trial court failed to make specific factual findings on the matter. This necessitated the reversal of the judgment on that issue. The appeals court affirmed as to the cash gifts and alimony, but reversed and remanded for further proceedings on equitable distribution.


Case:              Dickson v. Dickson
Court:            Fifth District Court of Appeal.
Trial Judge:   Mark J. Hill.
Attorneys:     Nicholas A. Shannin, Lauren M. Ilvento, Barry P. Burnette, Matthew B. Capstraw
Issues:            Timesharing. 

Holding:        A trial court's order modifying a parenting plan and timesharing schedule is reviewed for an abuse of discretion. The trial court has less authority and discretion to modify timesharing than it does to make the initial timesharing determination. Under Florida Statutes (2013), relocation is a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing. Further, the change of location must be at least 50 miles from that residence. In the absence of a statutory or contractual provision to the contrary, the proper method to measure the distance between two points is the straight-line or “as the crow flies” measure. Under the principle of shared parental responsibility, major decisions affecting the welfare of a child are to be made after the parents confer and reach an agreement. If the parents reach an impasse, the dispute should be presented to the court for resolution whereby the court must resolve the impasse by determining the best interests of the child.

In this case, the trial court abused its discretion by modifying the timesharing agreement without evidence that the welfare of the minor child would be promoted by a return to the school the minor child had previously attended and modifying the timesharing arrangement so that the Father assumed the primary timesharing responsibilities. The Mother’s move did not violate the marital settlement agreement or the relocation statute. While the timesharing schedule largely met the statutory requirements, it did not include a school designation, and the marital settlement agreement did not expressly prohibit a move. Further, the parties agreed that the Mother moved forty-nine miles “as the crow flies,” using the straight-line test and was not required to file a petition to relocate. However, the dissolution final judgment gave the parties shared parental responsibility on major decisions, including educational matters. Because the parties were unable to agree on the minor child’s school, the Mother was required to obtain court approval before unilaterally changing the schools the minor child attended. The appeals court reversed and remanded with directions.


Case:              Rossi v. Rossi
Court:            Fifth District Court of Appeal.
Trial Judge:   Kelly J. McKibben.
Attorneys:     Joe Teague Caruso.
Issues:            Equitable Distribution. 

Holding:         A trial court's determination that a motion or other filing is improper, as labelled, is a question of law and is reviewed de novo. Where it is apparent that an improperly-labelled motion is intended to operate as an authorized motion, an appellate court must consider the motion as if it were properly labelled. Where a party files a motion that would be unauthorized based on the motion's title, Florida courts will consider the motion's substance in determining whether the motion was authorized. The mislabelling of a motion will not preclude consideration. In this case, the trial court erred as it failed to consider the content of an improperly-labelled motion for rehearing and treated the motion as a list of exceptions. Specifically, the trial court found no issue with the substantive content of the Former Wife's list of exceptions. That finding necessarily implied that the substantive content of the motion for rehearing—which was identical to the list of exceptions was also sufficient. The trial court should have treated Former Wife's unauthorized motion for rehearing as an authorized list of exceptions and should have held a hearing on the magistrate's report. The appeals court reversed the trial court's entry of final judgment and remanded for a hearing on the Former Wife's list of exceptions to the magistrate's report.


About DivorceCourtAppeals.com and Bruce Law Firm, P.A.

The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts.  The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts.  The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.

Florida Divorce & Family Law Update for Week Ending July 12, 2015

Below are summaries of recent decisions from Florida's appellate courts on Florida divorce and family law issues.  Clicking on the case name allows you to view the appellate opinion described in the analysis below.  These summaries are courtesy of Bruce Law Firm, P.A., a law firm limited to representation of clients in the mediation, litigation and appeals of Florida marital and family law matters.  The firm also created and maintains the family law focused appellate resources website DivorceCourtAppeals.com.


Case:             Thompson v. Malicki
Court:            Second District Court of Appeal.
Trial Judge:  Lee Ann Schreiber.
Attorneys:     Christopher R. Bruce.
Issues:           Relocation, Modification, Child Support

Holding:         A trial court's imputation of income must be supported by competent, substantial evidence. When calculating child support, Florida Statutes (2011) provide that the trial court shall impute income to a voluntarily unemployed or underemployed parent absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. Where income is to be imputed, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available.

In this case the trial court did not err as to its modification of timesharing and the denial of relocation as those findings were based on cogent, substantial evidence. However, the trial court erred when it based an award of child on imputed income of the Former Wife which was not supported by sufficient findings or evidence. Reliance on past work history alone is insufficient to support imputation of income. Particularized findings are required regarding work history, occupational qualifications, and the current job market in the community to support the imputation of income. Failure to make these findings results in reversal.

The appeals court remanded for the trial court to take further evidence on this issue and recalculate the amount of child support as necessary.


 Case:             J.B. etc v. Florida D.C.F.
Court:             Florida Supreme Court.
Trial Judge:
Attorneys:
  Stephanie Christina Zimmerman, Dwight Oneal Slater, Ryan Thomas Truskoski, George E. Schulz, Jr., Robin L. Rosenberg, Wendie Michelle Cooper, Kelley Ruth Schaeffer.
Issues:            Termination, Process. 

Holding:         The right to counsel in termination of parental right (TPR) proceedings includes the right to effective assistance and requires a means of vindicating that right.
The Supreme Court considered two questions.

1.    Is the criminal standard of ineffective assistance of counsel applicable to claims of ineffective assistance of counsel in proceedings involving the termination of parental rights? The SC answered in the negative.

2.  Is any procedure available following the termination of parental rights to raise claims of ineffective assistance of counsel that are not apparent on the face of the record? The SC answered in the affirmative.The Supreme Court:

a. established the appropriate standard for determining whether counsel provided constitutionally ineffective assistance in termination of parental rights proceedings;

b.   provided a temporary process for bringing such claims of ineffective assistance; and

c.   directed the development of rules providing the procedure for vindicating that right.

1.     The Right to Counsel

Under Florida statutory law, parents have a right to counsel in both dependency and TPR proceedings. While the appointment of counsel is not required by the constitution, it is required under the due process clause of the United States and Florida Constitutions, in proceedings involving the permanent termination of parental rights to a child.

2.     The Right to Effective Assistance of Counsel

The right of indigent parents to counsel under the Florida Constitution in TPR proceedings necessarily includes the constitutional right to the effective assistance of counsel.

3.     The Standard for Ineffective Assistance

The standard for determining ineffective assistance of counsel claims is that the parent must establish that the result of the TPR proceeding would have been different but for the attorney’s deficient performance. Once tis is established, then the order terminating parental rights should be vacated, and the case returned to the circuit court for further proceedings.

4.  Temporary Procedure for Ineffective Assistance Claims in TPR Cases

Post-TPR proceedings must be expeditious.  A permanent such process will be developed. The Supreme Court set an interim process for bringing claims of ineffective assistance of counsel following the termination of parental rights. This interim process requires that claims of ineffective assistance first must be raised by the parent and ruled on by the trial court. The trial judge must ensure that the parents whose rights are at issue are informed of those rights such that at the end of each TPR adjudicatory hearing, the circuit court shall orally inform the parents for whom counsel was appointed regarding the right to:

(1)  appeal the order entered at the end of the TPR proceedings to the district court; and

(2) file a motion in the circuit court alleging that appointed counsel provided constitutionally ineffective assistance (if the court terminates parental rights).

In addition, a written order terminating parental rights shall include a brief statement informing the parents of the right to effective assistance and a brief explanation of the procedure for filing such a claim. Indigent parents (likewise without the assistance of appointed counsel) must file a motion in the circuit court claiming ineffective assistance of trial counsel in the TPR proceeding. Appeal from an order denying a motion alleging the ineffective assistance of counsel will be raised and addressed within any appeal from the order terminating parental rights. A parent, without assistance of appointed counsel, shall have twenty (20) days after the termination judgment issues within which to file a motion in the trial court alleging claims of ineffective assistance of counsel. The motion must contain the case name and number; the date the order of termination of parental rights issued; the specific acts or omissions in trial counsel’s representation of the parent during the TPR proceedings that the parent alleges constituted a failure to provide reasonable, professional assistance; and an explanation of how the errors or omissions prejudiced the parent’s case to such an extent that the result would have been different absent the deficient performance.

If a parent files an ineffective assistance of counsel motion, rendition of the order in the TPR proceeding will be tolled for purposes of appeal until the circuit court issues an order on the pro se ineffective assistance motion. If a parent chooses to file a motion claiming ineffective assistance of counsel, then counsel of record cannot continue representation.  

If the parent chooses to appeal, the attorney must certify, among other things, that:

a.     the parent so chose;
b.     a notice of appeal signed by counsel;
c.     the parent has been filed; and
d.     an order appointing appellate counsel, if any, has been entered.

Further, the appointed attorney representing an indigent parent, must, after issuance of an order terminating parental rights, discuss appellate remedies and determine whether the parent wants to appeal the TPR order. If the answer is affirmative, counsel must also inquire whether the parent intends to file a motion claiming ineffective assistance of counsel. If the parent responds affirmatively, then counsel must immediately seek withdrawal on this basis. In addition, if the parent subsequently files a motion alleging ineffective assistance despite the parent’s prior expression of a contrary intent, if counsel of record is also appellate counsel withdrawal is required at that time, and new counsel will be appointed for any appeal from the TPR order and from the disposition of the ineffective assistance of counsel motion.

When a parent files a motion alleging ineffective assistance of counsel, rendition of the trial court’s TPR order will be tolled for purposes of appeal until the trial court rules on any claim of ineffective assistance of counsel. The trial court shall review the ineffective assistance motion and order compilation of the record regarding the termination of parental rights proceedings on an expedited basis. Further, the trial court shall conduct proceedings, including an evidentiary hearing if necessary, to determine whether the motion should be granted or denied. The circuit court shall render an order within twenty-five (25) days after the motion alleging ineffective assistance was filed or the motion shall be deemed denied.

On appeal, the district court will review claims regarding the parent’s appeal from the trial court’s TPR order and from the disposition of the ineffective assistance motion. This process will apply to any case in which a judgment terminating parental rights is entered after this case becomes final. Creation of the permanent process and development of the attendant rules will be the task of a special committee.

In this case, the Supreme Court determined, that the appellant failed to present any basis for setting aside the order terminating her parental rights and affirmed the trial court’s decision.


Case:              S.V. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge:   Alan S. Fine.
Attorneys:      Karla F. Perkins, Kele Stewart, Laura E. Lawson.
Issues:            Dependency, Reunification. 

Holding:         A certiorari review of the trial court’s non-final order is limited to whether the trial court departed from the essential requirements of law in conducting its review of the general magistrate’s report and recommendations, resulting in irreparable harm to the petitioner that cannot be remedied on direct appeal.

In this case, the trial court did not err as it adhered to the essential requirements of law and applied the correct legal standards when it reviewed the general magistrate’s recommendations. Specifically, the trial court found that competent substantial evidence did not support the general magistrate’s finding that the Father, at this time, had the capacity to meet the children’s extensive and unremitting therapeutic needs. The appeals court denied the petition to review the lower court decision.


Case:             Quinn v. Quinn
Court:            Second District Court of Appeal.
Trial Judge:  John A. Schaefer.
Attorneys:      Ingrid Anderson.
Issues:            Child Support, Equitable Distribution. 

Holding:         When a parenting plan provides that the children will spend a "substantial amount of time" with each parent, defined as at least twenty per cent of the overnights per year, the award of child support should be adjusted as set forth in Florida Statutes (2013), requiring calculation based in part on the percentage of overnights the children spend with each parent. While the statute presumptively establishes the amount of child support, the court may deviate from the presumptive amount based on numerous factors, including the obligee parent’s low income and ability to maintain the basic necessities of the home for the child, the likelihood that either parent will actually exercise the time-sharing schedule set forth in the parenting plan  and whether all of the children are exercising the same time-sharing schedule. If the trial court wishes to deviate from the presumptive amount by more than five percent, the final judgment must include findings of fact to support the deviation and explain why the guidelines amount is unjust or inappropriate.

In this case, the trial court erred in ordering a number of overnights to each parent that contradicted those ordered in the parenting plan without explaining the discrepancy. This was an error on the face of the judgment requiring the appeals court to reverse and remand.


 Case:             Sikora v. Sikora
Court:            Second District Court of Appeal.
Trial Judge:   Richard A. Nielsen.
Attorneys:      Christine A. Hearn, Steven L. Brannock, Mark F. Baseman.
Issues:            Alimony, Equitable Distribution, Imputation. 

Holding:         Permanent Periodic Alimony

Permanent periodic alimony is used to provide the needs and the necessities of life to a Former Spouse as they have been established by the marriage of the parties. Absent special circumstances, an alimony award should not exceed a Recipients Spouse's need (excessive awards constitute an abuse of discretion). In the absence of special circumstances, a  trial court errs by awarding permanent, periodic alimony in an amount that exceeds a Former Spouse’s established needs. In this case, the trial court failed to include findings detailing any special circumstance that would explain why alimony was awarded in an amount exceeding the amount necessary to meet the Former Wife's need. The appeals court reversed and remanded for the trial court to either include such findings or reconsider the issue in its entirety.

Imputation

Trial courts may impute income from interest earned on retirement accounts if the income is readily available to a Former Spouse without penalty and without the need to reduce the principal. However, any decision to impute income must be supported by competent, substantial evidence. In this case, the trial court erred by imputing income to the Former Wife from her retirement accounts where there was no evidence to support the specific rate of return used by the trial court. Nor was there an agreement of the experts on the rate of return for the retirement accounts or evidence of the historical rate of return. Rather, the trial court selected the same rate of return used for imputing income on the Former Wife's investment accounts. The appeals court remanded with directions to adjust the alimony award accordingly.

Retroactivity

Generally, when a trial court awards alimony, it abuses its discretion if it fails to make the award retroactive to the date of filing the petition for dissolution. There is an exception where the trial court enters a temporary alimony award during the pendency of the case. In that situation, a retroactive award is limited to the date that the request for an increased award is filed. However, a temporary alimony award can be readdressed at a final hearing if the temporary award was made "without prejudice."

In this case, the parties stipulated that the Former Husband would pay temporary alimony, and the court awarded temporary alimony "without prejudice” such that the issue of temporary alimony could be readdressed at the final hearing. The appeals court ordered the reversal of the permanent, periodic alimony award, and on remand, directed the trial court reconsider the issue of retroactivity of any newly imposed permanent, periodic alimony award (after comparing such award to the stipulated temporary alimony).

Life Insurance

A trial court must include findings relating to a Former Spouse’s insurability at the time of trial and the cost of an insurance policy. In this case the trial court erred when it ordered the Former Husband to secure an insurance policy in the absence of any explanation for how this amount was arrived at or what it was based on. Moreover, trial court's failure to explain how it arrived at the specific dollar requirement was troublesome because the specific amount of coverage bore no correlation to projected alimony amounts and it was not possible for the appeals court to ascertain if the trial court ordered life insurance for purposes other than securing alimony due at the time of the Former Husband's death.

Lump Sum Alimony

Courts have previously reversed lump sum alimony awards that have no evidentiary support.  In this case, there was no evidence to justify the lump sum alimony award, and the trial court made no findings to explain its rationale. The appeals court reversed and remanded for the trial court to reconsider the award based on the evidence on the record.

 Attributing Dissipated Assets as Part of Equitable Distribution

It is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings. However, an exception to this general proposition exists when misconduct during the dissolution proceedings results in the dissipation of a marital asset. The misconduct necessary to support inclusion of dissipated assets in an equitable distribution scheme does not include mismanagement or simple squandering of marital assets in a manner of which the other spouse disapproves. Instead, to include a dissipated asset in the equitable distribution scheme, there must be evidence of the spending spouse's intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct.

n this case, the trial court erred failing to apply to the standard for attributing dissipated assets to a spouse in dissolution proceedings.  Specifically, the trial court erred in attributing monies to the Former Wife in the equitable distribution in such a way that amounted to a sanction for failing to comply with a documenting requirement. The appeals court reversed the trial court's equitable distribution awards and remanded for further proceedings. 


About DivorceCourtAppeals.com and Bruce Law Firm, P.A.

The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts.  The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts.  The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.

 

Florida Divorce & Family Law Update for Three Weeks Ending May 10, 2015

Below are summaries of recent decisions from Florida's appellate courts on Florida divorce and family law issues.  Clicking on the case name allows you to view the appellate opinion described in the analysis below.  These summaries are courtesy of Bruce Law Firm, P.A., a law firm limited to representation of clients in the mediation, litigation and appeals of Florida marital and family law matters.  The firm also created and maintains the family law focused appellate resources website DivorceCourtAppeals.com.

Case:              Santos v. Santos
Court:             Second District Court of Appeal.
Trial Judge:   Amy Smith.
Attorneys:     Christine Greider, Justin C. Carlin, James W. Chandler.
Issues:            Parenting, Child Support. 

Holding:  The use of outdated financial information in calculating a child support award can constitute reversible error. In this case, the trial court erred in its modification of the child support plan in the final judgment when it used outdated financial information from both the Former Wife and the Former Husband in calculating the amount of child support. The appeals court reversed the final judgment with respect to the child support modification and remanded for the trial court to reconsider the support award in light of the parties' updated financial information. 


Case:              Robertson v. Robertson
Court:             Fourth District Court of Appeal.
Trial Judge:   Merrilee Ehrlich.
Attorneys:     John T. David, Rhoda Sokoloff.
Issues:            Injunction for Protection. 

Holding:  Florida Statutes (2013), criminalizes a person who wilfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person. To harass, is to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose. This “course of conduct” includes “a series of acts over a period of time, however short, which evidences a continuity of purpose.” In this case, the trial court did not err in entering the injunction insofar as surveillance-based evidence showed three incidents, which were further verified by Appellant’s e-mail to Appellee admitting to being at her residence, established a course of conduct sufficient to support the trial court’s entry of the injunction against Appellant. 


Case:              Plummer v. Forget
Court:             Fifth District Court of Appeal.
Trial Judge:    Dan Traver.
Attorneys:      Patrick Michael Megaro, Jennifer M. Manyen.
Issues:            Injunction for Protection. 

Holding:  A person commits the act of stalking by wilfully, maliciously, and repeatedly following, harassing, or cyberstalking another person. To harass another person means to engage in a course of conduct directed at that specific person which causes substantial emotional distress to him or her and serves no legitimate purpose.  A course of conduct is a series of actions, over a period of time, which evidences a continuity of purpose. Each incident of stalking must be proven by competent, substantial evidence.  When evaluating whether competent, substantial evidence supports a trial court's ruling, legal sufficiency, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal. In determining whether each incident of harassment causing substantial emotional distress has been established to support a finding of stalking, courts use a reasonable person standard, not a subjective standard. In this case the trial court erred in entering the injunction for protection as the evidence was legally insufficient to support doing so. The appeals court reversed. 


Case:              Beckstrom v. Beckstrom
Court:             Fourth District Court of Appeal.
Trial Judge:   Amy Smith.
Attorneys:      Betty C. Resch, Sean P. Sheppard.
Issues:            Alimony, Attorney’s Fees. 
Holding:  Attorney’s Fees

Despite the lack of a transcript and an adequate record, when the error appears on the face of the judgment, it should be corrected. A trial court may order a party to pay a reasonable amount for attorney’s fees. The trial court is required to consider the financial resources of both parties and make findings regarding their respective financial needs and abilities to pay. Failure to do so requires reversal. The trial court also has discretion to allow payment of an award of attorney’s fees over time, but it must set out a factual basis for imposing the specific payment plan selected.  In this case, the trial court found the Former Wife was in need of attorney’s fees, but did not make a finding as to the Former Husband’s ability to pay and did not set forth any factual basis for imposing this specific payment plan. The appeals court reversed the judgment on this issue and remanded the case to the trial court to make the requisite written findings.

Life Insurance Policy

Under the invited error rule, a party cannot successfully complain about an error for which he or she is responsible or of rulings that he or she invited the court to make. In this case, the trial court did not err in ordering the Former Husband to purchase a life insurance policy and include such a provision in his proposed final judgment when the Former Husband so agreed earlier in the proceedings. The appeals court affirmed on this point. 


Case:              Gilroy v. Gilroy
Court:             Second District Court of Appeal.
Trial Judge:   Amy M. Williams.
Attorneys:     Jane H. Grossman, Peter N. Meros.
Issues:            Time-sharing, Child Support. 

Holding:  Florida Family Law Rules of Procedure require the filing of a financial affidavit in supplemental dissolution proceedings, with service within 45 days of service of the initial pleading on the respondent. The Rules provide a continuing duty to supplement financial affidavits upon a material change in financial circumstances. The requirement to provide a financial affidavit in supplemental proceedings is mandatory and cannot be waived by the parties. As well, a request for a continuance must be entertained, in order to properly present evidence regarding the relevant issues. In this case, the trial court erred in denying the Former Husband's request for a continuance when the Former Wife did not serve and file her financial evidence in compliance with the Rules and giving the Former Husband sufficient time to properly review it and prepare.  The appeals court reversed and ordered a new hearing on the issue of child support and directed that discovery be conducted prior to the final hearing on remand.


Case:              C.D. v. D.C.F.
Court:             First District Court of Appeal.
Trial Judge:   David M. Gooding.
Attorneys:     Jeffrey E. Lewis, Crystal McBee Frusciante, Kelley Schaeffer, Ward L. Metzger.
Issues:            Termination. 

Holding:  In termination of parental rights cases, the standard of review is highly deferential. The trial court's findings must be supported by competent substantial evidence. In order for parental rights to be permanently and involuntarily severed, the state must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child. As parental rights constitute a fundamental liberty interest, the state must establish in each case that termination of those rights is the least restrictive means of protecting the child from serious harm. Florida statutes provide that the availability of a placement with a relative may not be considered as a ground to deny the termination of parental rights. However, in this case the applicable test was whether termination was the least restrictive means of protecting a child from serious harm. In this case, the trial court erred as it found the least restrictive means of achieving permanency and held that termination was the least restrictive means of protecting the children from harm. The appeals court reversed. 


Case:              Sisca v. Sisca
Court:             Fourth District Court of Appeal.
Trial Judge:   Thomas H. Barkdull, III.
Attorneys:      Roger Levine, Amy D. Shield, Jonathan M. Streisfeld, Michael B. Gilden.
Issues:            Alimony, Attorney’s Fees. 

Holding:        Under Florida statute, awards of attorney’s fees must be based on evidence that demonstrates the requisite need and ability to pay. An obligor should not be made to invade certain assets and investments if there is evidence the obligee has their own assets upon which he or she could rely. In this case, the trial court erred in ordering the Former Wife to pay the Former Husband’s attorney’s fees despite evidence showing her net income was lower than his. Rather, the trial court based its decision on financial evidence showing her investments, liquid assets, were worth more than his. However, based on their respective net monthly incomes, to pay his fees, the Former Wife would have to invade the liquid assets, while his financial evidence showed he had investments and other assets on which he could rely. Under these circumstances, it was an abuse of the trial court’s discretion to require the Former wife to pay the Former Husband’s fees. The appeals court reversed the fee awards. 


Case:              D.S. v. D.C.F.
Court:             Fourth District Court of Appeal.
Trial Judge:   Hope Bristol.
Attorneys:   Antony P. Ryan, Paulina Forrest, Pamela Jo Bondi, Carolyn Schwarz, Patricia Murphy Propheter.
Issues:            Termination. 

Holding:  Termination of parental rights by the state requires clear and convincing evidence establishing one of the enumerated statutory grounds including risk to the child; that termination is in the manifest best interest of the child; and that termination is the least restrictive means of protecting the child from harm. Grounds for establishing termination can include the incarceration of a parent and whether the period of time for which the parent will be incarcerated will constitute a significant portion of the child’s minority. In determining whether the period of time is significant, the court shall consider the child’s age and the child’s need for a permanent and stable home. The period of time begins on the date that the parent enters into incarceration. The court must look both at the length of the incarceration as well as its effect on the child’s need for permanency.  The state must prove that termination is in the best interest of the child and the least restrictive means of protecting him or her from harm. In this case the trial court was correct in terminating for the minor child who had been in foster care, the foster parents anticipated adopting him and he did not wish to see his father. The state proved same by clear and convincing evidence. That child’s need for permanency (being adopted) was paramount, supported by competent substantial evidence, in the manifest best interest of the child and was the least restrictive means to prevent harm to him.

As for the children living with a relative, the trial court erred in terminating as the state did not establish grounds for same. The children were living with a relative, and the Father maintained as close a relationship as his incarceration has allowed and the finding that his incarceration amounted to a significant portion of the children’s minorities was not supported by substantial and competent evidence. Nor was it shown that termination was in the children’s best interest nor the least restrictive means to prevent harm to the children. The appeals court affirmed the termination regarding the one child parental but we reversed the termination as to the other children.


Case:              Brandon-Thomas v. Brandon-Thomas
Court:             Second District Court of Appeal.
Trial Judge:   John E. Duryea, Jr..
Attorneys:     Luis E. Insignares, Brian J. Kruger, Michael E. Chionopoulos, Pamela Jo Bondi, Allen Winsor, Adam S. Tanenbaum.
Issues:             Same-Sex Marriage. 
Holding:  The trial court was reversed for dismissing a same-sex divorce case based on lack of jurisdiction.  The appellate court remanded to the trial court to consider the merits of the divorce petition.

Like those federal court decisions recognizing same-sex marriages, a same-sex divorce must be analysed principally for compliance with the Equal Protection and Due Process Clauses of the federal constitution to the extent that the trial court's order denied relief to the appellant. The application of the constitutional principles of equal protection and due process apply to the dissolution of same-sex marriages. The issues at hand require key focus. The primary issues at hand involve the rights of a same-sex couple, validly married in another state and now living in Florida, to seek a dissolution of marriage in Florida. A heterosexual couple under similar circumstance could easily invoke a Florida trial court's jurisdiction. More precisely defining the issue and the right enables easier application of the constitutional principles of equal protection and due process.

In this case, the court is petitioned to assist in returning the parties to single status – to adjust the parties' financial and property relationships and provide some judicial direction concerning child custody. The parties are not asking a Florida court to form a marital union, they seek disengagement from a broken relationship. Upon dissolution of marriage, the parties will each be single. Apart from the mandates of any final judgment, any state or federal obligations or benefits attendant to marriage presumably will cease.  A well-settled general framework is utilized for the constitutional analysis. The substantive component of the Due Process Clause checks state authority to enact untenable measures, even if enacted with appropriate procedural safeguards. Substantive due process protects fundamental rights. As the Florida Constitution and legislation classify same-sex couples differently than heterosexual couples for purposes of dissolution of marriage, the proper definition of the right sought plays a leading role. In this case, the state failed to identify and argue the proper right. Rather, it pursued analysis and argument related to Florida’s ban of same-sex marriage and regarding Florida laws, under which, sexual orientation is not a protected class entitled to strict-scrutiny analysis.  As the state bears the burden of presenting only a rational basis for its legislation, on the arguments presented, it fell short and tied the analysis to the need to promote procreation and have children raised in a particular family situation. The state made this a same-sex issue when it is not. Once the real issues are defined that becomes apparent. However, even if Florida's purported interest in procreation and having children raised in a heterosexual household were rational reasons to ban same-sex marriage, the state did not establish why or how prohibiting a validly married same-sex couple from seeking a divorce in Florida advances either of these interests. The state has not articulated how prohibiting a trial court from dissolving a same-sex marriage, validly entered into in another state, will promote a rise in procreation. Nor does the state explain how denying a couple a divorce will optimize what it sees as an ideal environment for raising children. Indeed, in the context of a marriage dissolution, the trial court will be in an ideal situation to protect the best interest of the child parented by this couple. The appeals court did not discount the state's reason for enacting its laws and noted that a court should defer to the state when it has provided a basis for its statutory and constitutional classifications. However, such deference presupposes that the state has a rational basis for its position, which in this case, was not established.   


Case:              Gilliard v. Gilliard
Court:             Fifth District Court of Appeal.
Trial Judge:   Linda Schoonover.
Attorneys:      David L. Robold, Shannon L. Akins, Nicholas A. Shannin, Patrick John McGinley.
Issues:            Alimony, Equitable Distribution, Attorney’s Fees. 
Holding:  Alimony
In order to award alimony, a court must make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. The burden to show his or her financial need and the spouse’s ability to pay is on the party requesting alimony. A marriage having a duration of greater than 7 years but less than 17 years is considered a moderate-term marriage and there is no presumption for or against permanent alimony. Permanent alimony may be awarded following a moderate-term marriage if such an award is appropriate based upon clear and convincing evidence after consideration of the factors set out by statute. The purpose of permanent alimony is to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties.          The ability to pay alimony should be based on the party’s net, not gross, income.


In this case, the trial court erred in awarding alimony based on the Former Husband’s gross income. The trial court also erred in considering Former Husband’s future retirement benefits as both current income and a marital asset, included in its distribution of the parties’ marital assets when the future retirement benefits should be considered in the division of marital assets.  The trial court erred further when it failed to make specific written findings regarding the standard of living established during the marriage, the contributions of each party to the marriage, or the tax treatment and consequences of awarding alimony.

Equitable Distribution

Under Florida statute, in distributing marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal. Although a trial court may distribute marital assets and liabilities unequally, it is required to justify such an award based on all relevant factors under statute. A court should make enumerated findings related to each factor under statute. While parties may agree to a specific distribution of some of their assets and liabilities in a mediated or other settlement agreement, the court should placed values on the various items of personal property because each division and distribution of a marital asset and liability is interrelated to form an overall scheme fair to both parties.


The trial court erred in awarding an asset to the Former Wife firstly in the equitable distribution scheme and then a second time in the attorney’s fees. The trial court erred in failing to place a value on the parties’ automobiles, furniture, and furnishings distributed pursuant to the partial mediation agreement and erred when it ordered the Former Husband to make mortgage payments if he failed to make his alimony payments. Proper recourse there would have been to impose sanctions for wilfully failing to comply with a court order. The trial court also erred in failing to consider the consolidation loan as a marital liability.

A
ttorney’s Fees

An award of attorney’s fees must be based on clear and cogent evidence of the parties’ respective need and ability to pay. Such findings must be housed in specific factual findings which also include those regarding the attorney’s work (ie: reasonable number of hours spent and the reasonable hourly rate.)  In this case, the trial court did not err in that regard, but did improperly include an asset that was already distributed when it conducted the ability to pay analysis.

The appeals court reversed the entire distribution plan and remanded for reconsideration. 


About DivorceCourtAppeals.com and Bruce Law Firm, P.A.

The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts.  The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts.  The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.

Florida Divorce & Family Law Update for Week Ending April 12, 2015

Below are summaries of recent decisions from Florida's appellate courts on Florida divorce and family law issues.  Clicking on the case name allows you to view the appellate opinion described in the analysis below.  These summaries are courtesy of Bruce Law Firm, P.A., a law firm limited to representation of clients in the mediation, litigation and appeals of Florida marital and family law matters.  The firm also created and maintains the family law focused appellate resources website DivorceCourtAppeals.com.

Case:              Liberatore v. Liberatore
Court:            Fifth District Court of Appeal.
Trial Judge:   Bob Leblanc.
Attorneys:     Robin I. Bresky, Cynthia Greene.
Issues:            Equitable Distribution.

Holding:      On remand, a lower court must strictly follow the instructions of an appellate court. Typically, when a lower court commits reversible error in valuing or distributing marital assets, the entire distribution plan must be reversed and reconsidered on remand. This is because each division and distribution of a marital asset and liability is interrelated to form an overall scheme fair to both parties. However, in some instances, an error in an equitable distribution plan can be corrected in isolation; in those circumstances, an appellate court may direct the lower court to correct only that error in isolation. In this case the trial court erred in moving away from the instructions of the appeals court in reconsideration of equitable distribution. The trial court proceeded, at the request of the Former Husband, to address a post-judgment sale of the parties’ martial residence while reconsidering the distribution of the marital assets. The appeals court reversed and remanded for reconsideration of the entire equitable scheme. 


Case:              M.N. Jr. v. D.C.F.
Court:             Fourth District Court of Appeal.
Trial Judge:   Lawrence Mirman.
Attorneys:     Chet E. Weinbaum, Karla Perkins, Laura E. Lawson.
Issues:            Adoption. 

Holding:      Florida Statutes (2013) provides that an action or proceeding of any kind to vacate, set aside, or otherwise nullify a judgment of adoption . . . may not be filed more than 1 year after entry of the judgment terminating parental rights. In this case, the trial court erred in dismissing a biological Father’s second motion to set aside the termination order in the adoption of his biological child on procedural grounds (ie: notice). In fact, the motion in issue was statute-barred as it was filed more than one year after the termination order was entered. The appeals court affirmed. 


Case:              Ledoux-Nottingham v. Downs
Court:             Fifth District Court of Appeal.
Trial Judge:    Bob LeBlanc.
Attorneys:      Jamie Billotte Moses, Leigh Anne Miller, Andrew T. Windle.
Issues:            Grandparent Visitation, Attorney’s Fees. 

Holding:          Jurisdiction

A Florida court shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this part or the determination was made under factual circumstances meeting the jurisdictional standards of Florida laws. In this case, trial court did not err when it enforced the Colorado order determining visitation for the Grandparents after the Mother moved from Colorado to Florida. Since the Colorado order was a final judgment and emanated from a “child custody proceeding” within the meaning of Florida Statutes (2013), it became enforceable in Florida pursuant to the Full Faith and Credit Clause. Accordingly, the trial courts was required, without discretion, to give recognition to final judgments of another state.

Modification

A party seeking modification of a time-sharing schedule has the burden of  proving (1) a substantial and material change in circumstances, and (2) that the best interests of the child will be promoted by such modification. The substantial and material change in circumstances must have occurred subsequent to the last order addressing time-sharing.    In this case, the trial court properly determined that there had not been a substantial and material change in circumstances during the 13 days between the entry of the Colorado order and the filing of Mother’s petition.

Make-Up Visitation   


In such circumstances, a trial court is not necessarily precluded from ordering make-up visitation. On remand, the trial court was directed to promptly address the Grandparents’ motion for make-up visitation.

Attorney’s Fees

Florida States (2013) provides that if a court has personal jurisdiction over the party against whom attorney’s fees are being assessed, the court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including attorney’s fees  unless the party from whom fees  are sought establishes that the award is clearly inappropriate. In this case, the trial court erred in summarily denying the Grandparents’ request for attorney’s fees, because it did not consider whether assessing attorney’s fees against Mother would be “clearly inappropriate.” On remand, the trial court was directed to make specific findings as to the entitlement to attorney’s fees. 


About DivorceCourtAppeals.com and Bruce Law Firm, P.A.

The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts.  The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts.  The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.

Florida Divorce & Family Law Update for the Three Weeks Ending December 26, 2014

Below are summaries of recent decisions from Florida's appellate courts on Florida divorce and family law issues.  Clicking on the case name allows you to view the appellate opinion described in the analysis below.  These summaries are courtesy of Bruce Law Firm, P.A., a law firm limited to representation of clients in the mediation, litigation and appeals of Florida marital and family law matters.  The firm also created and maintains the family law focused appellate resources website DivorceCourtAppeals.com.

Case:              Geraci v. Geraci
Court:             Second District Court of Appeal
Trial Judge:   Richard A. Weis, Cheryl K. Thomas
Attorneys:     Patricia K. Kuhlman, David A. Maney, Mark A. Linsky, Raymond T. Elligett, Jr., Amy S. Farrior, David M. Carr, Matias Blanco, Jr.
Issues:            Property Distribution, Alimony, Antenuptial Agreement

Holding:  A court may determine that an antenuptial agreement was abandoned or rescinded by the conduct of the parties during their marriage. This determination must be based on competent, substantial evidence of the parties’ conduct during the marriage. In this case, the trial court did not err in holding that, after reviewing all the evidence as to the parties’ conduct, the antenuptial agreement did not apply to an alimony or equitable distribution upon dissolution. However, the trial court was unclear as to its consideration regarding a certificate of deposit the Former Wife allegedly removed prior to the property division. As such, the appeals court affirmed on the issues of division and distribution and remanded the issue the certificate of deposit for consideration and an amended judgment.  


Case:              Porter v. Porter
Court:             Second District Court of Appeal
Trial Judge:   Marion L. Fleming
Attorneys:     Joseph J. Registrato, Seth R. Nelson, Kathryn M. Ashley
Issues:            Equitable Distribution, Parenting, Support. 

Holding:  If parties to a dissolution properly enter into stipulations regarding equitable distribution, then the stipulations bind the parties and also the court. In this case, the trial court erred in refusing to enforce the parties' stipulation regarding a vehicle and associated debt. In the final equitable distribution scheme the parties' debt, which exceeded their assets, was equally distributed between the parties. The trial court later made a further distribution based on a later unsworn representation by the Former Wife's counsel. No one disputed that the parties properly entered into the stipulations. The appeals court reversed the equitable distribution award and remanded with directions for the court to distribute the particular asset and its associated debt to the Wife. The trial court was also directed to refashion the portions of the equitable distribution scheme to which the parties did not stipulate in order to effect an approximately equal a distribution of the parties' debt. 


Case:              Brummer v. Brummer
Court:             Fifth District Court of Appeal
Trial Judge:   Willard Pope
Attorneys:      Robert H. McLean, Henry G. Ferro
Issues:            Parenting, Property Distribution, Child Support

Holding:  Ordering Psychological Evaluations & Obligations to Pay:  When formulating a time-sharing plan, a court may order a psychological evaluation of the parties and the children in concert with findings that this is in the best interests of the children. The court may also order one of the parties to pay for the evaluation, but it must find that the party has the ability to do so. In this case, the trial court determined the psychological evaluation of the parents and children was required and the Father was obligated to pay for it. However, the trial court did not make the necessary findings as to the children’s best interests and the Father’s ability to pay. The appeals court reversed the portion of the Final Judgment addressing the evaluation and its payment and remanded to make determinations on those issues. 

Non-Marital Property Determinations:
 

The determination and valuation of non-marital property must be done on competent and substantial evidence. In this case, the trial court erred in that it failed to properly consider the non-marital assets of the Former Husband and their characterization prior to distribution.  The relevant portion of the equitable distribution plan was reversed, and on remand, the trial court was directed to award to the Father his non-marital assets and properly determine the value of the firearm collection. 

Imputation of Income: 

Finally, the imputation of income in the Final Judgment for purposes of child support determinations must be supported by competent, substantial evidence. In this case, the trial court erred in imputing income to the Father in the absence of competent, substantial evidence. Accordingly, that part of the final judgment is reversed, and on remanded.
 


Case:              Assimenios v. Assimenios
Court:             First District Court of Appeal
Trial Judge:   Linda F. McCallum
Attorneys:     William S. Graessle, Jonathan W. Graessle, Barry S. Sinoff, Michael J. Korn
Issues:            Child Support, Parenting. 

Holding:  Imputing income to a party, or making a finding that they are voluntarily unemployed or underemployed, must be done in reliance on sufficient evidence. Notice and an opportunity to be heard is required when facing proceedings for breaching a parenting or support order.  In this case, the trial court erred in ordering the Former Wife responsible for the full cost of missed or cancelled appointments required under a parenting plan without affording her the opportunity to be heard and present evidence on point. In so doing, the trial court did not assess if her conduct was intentional or not, which is improper. The appeals court reversed the portion of the order imputing income to the Former Wife and remanded the case to the trial court to reconsider the issues. 


Case:              Winder v. Winder
Court:             First District Court of Appeal
Trial Judge:   Elzie S. Sanders
Attorneys:     Justin D. Jacobson, J. Mark Dubose, Jr., Karen S. Yochim
Issues:           Equitable Distribution, Alimony, Attorney’s Fees

Holding:  
It is improper to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings. However, if a spouse dissipates a marital asset during dissolution, resulting in a finding of misconduct by the trial court, then that asset is assigned to the spending spouse. In determining such misconduct and that a spouse has dissipated marital assets, the trial court must find the spouse acted intentionally. Such a finding is based on evidence showing that the marital funds were used for one party's own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. Misconduct is not shown simply by mismanagement or by the squandering of marital assets in a way of which the other spouse disapproves. A trial court’s ruling on equitable distribution is reviewed for an abuse of discretion.

In this case, the trial court erred in finding dissipation when it did not find misconduct on the part of the Former Husband in his handling of two marital assets. The evidence showed that certain funds were dissipated, but not improperly. Rather, the funds were used to pay marital expenses, including temporary support for the Former Wife, while the dissolution was pending.  On remand, the trial court was directed to exclude the funds received from the assets from the equitable distribution scheme.

Alimony

A trial court’s award of permanent alimony is reviewed for an abuse of discretion. In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in Florida statute supporting an award or denial of alimony. The test for determining an award of alimony is whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance, as based on the evidence. The purpose of permanent periodic alimony is not to divide future income to establish financial equality.  Marriages of less than 17 years in duration are of moderate duration (“grey-area” marriages) in which there is no presumption for or against permanent alimony.  Permanent alimony may be awarded following a marriage of moderate duration, if such an award is appropriate based upon clear and convincing evidence related to the enumerated factors (including but not limited to the financial resources of each party, the value of marital and non-marital assets and liabilities distributed to each, the standard of living established during the marriage, the contribution of each party to the marriage, and the sources of income available to either party.) Finally, in awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties.

In this case, the trial court erred in ordering permanent periodic alimony for the parties’ 10-year marriage in the absence of adequate factual findings as to the financial resources of each party and other relevant factors under statute. As this was a “grey-area” marriage, such findings in the final judgment of dissolution of marriage were required. The trial court’s failure to make such factual and written determinations precluded meaningful appellate review. In addition, the alimony award was reversed because the trial court failed to expressly find that no other form of alimony would be appropriate before awarding permanent alimony. On remand, the trial court was directed to take into consideration the effect of the appeal court’s holding regarding the exclusion of the funds from the two dissipated marital assets, as it would impact the financial resources of both parties. Further, given that the Former Husband’s current ability to pay alimony is at issue, the trial court was directed that, should it be faced with a situation where the Former Wife has a clear need for permanent alimony in the absence of his current ability to pay, then a nominal award of permanent alimony would preserve the trial court’s jurisdiction to revisit this matter, until a substantial change in the parties’ respective financial circumstances arises.

Attorney’s Fees

An award of attorney’s fees is based on the need of the party seeking the fees and the ability of the other party to pay the fees. The trial court must also make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors. A dissolution order directing a party to pay the other party’s fees and costs, which recites simply that the total amounts ‘are reasonable time spent and hourly rates,’ is insufficient.

In this case, the trial court erred as it made an award of attorney’s fees for the Former Wife when it did not make specific findings as to her need, the Former Husband’s ability to pay, and the reasonableness of her attorney’s fees and costs. As such, the appeals court was unable to accurately evaluate the propriety of the award. The appeals court therefore reversed  the order on attorney’s fees and remanded to the trial court for reconsideration in light of the changes in the parties’ relative financial resources following the trial court’s ultimate ruling. 


Case:              Wood Jr. v. Wood
Court:             First District Court of Appeal
Trial Judge:   Mark J. Borello
Attorneys:      Denise Watson, William S. Graessle, Michael J. Korn
Issues:            Child Support, Imputing Income

Holding:  Florida statute requires imputation of income to an unemployed or underemployed parent if such status is found by the court to be voluntary on that parent’s part. The trial court must undertake a two-step analysis of the circumstances and make findings based on cogent and substantial evidence. First, the trial court must conclude that the termination was voluntary; second, the court must determine whether the individual’s subsequent unemployment or underemployment resulted from the spouse’s pursuit of his or her own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received. While a parent’s motive in voluntarily quitting a job is relevant, it is simply one factor to be considered.

The party seeking a downward modification in their child support obligation bears the “heavier burden” where the original child support amount was by agreement of the parties.

The standard of review governing a trial court’s decision to modify child support and also to impute income for the purposes of calculating child support obligations is abuse of discretion.

In this case, the trial court erred when it abused its discretion when it granted the Former Husband’s motion to reduce his child support obligation; eliminate his arrearages; remove the security requirement for his payments; and impute income to the Former Wife when the evidence before it was insufficient and when it failed to undertake the required two-step analysis for imputing income.  The trial court improperly imputed income to the Former Wife solely because she voluntarily left her new employment and its order contained no particularized findings related to the current job market, her recent (5 years) work history, occupational qualifications, or the prevailing earnings level in the local community.  As well, the Former Husband’s motion to reduce his child support obligation was not supported by evidence sufficient to discharge his burden to establish grounds for a reduced child support obligation. He simply relied on a chart/child support worksheet indicating a reduction in his net income. The appeals court reversed and remanded with instructions for the trial court to reconsider the matters on proper evidence.


Case:              Caine v. Caine
Court:             First District Court of Appeal
Trial Judge:   Mary Polson.
Attorneys:     James M. Levy, E. Jane Brehany.
Issues:            Equitable Distribution.

Holding:  Florida law holds that a party is not entitled to any credits or setoffs upon the sale of the marital home unless the parties' settlement agreement, final judgment of dissolution of marriage, or final judgment equitably distributing assets or debts specifically provides that certain credits or setoffs are allowed or given at the time of the sale. If the parties do not have a settlement agreement involving the marital home, then the court shall consider specific factors before determining credits or setoffs in the final judgment. These include, but are not limited to; exclusive use and possession of the marital home is being awarded; alimony and child support awards and if such awards are being awarded to address expenses related to the marital home; value of the marital home to the party in possession and any other factor necessary to bring about equity and justice between the parties.

In this case, the trial court erred when it denied the Former Husband’s request for a set off of the amount of the fair rental value of the former marital home given that the final judgment was silent concerning his entitlement to a credit or setoff in the marital home.   The final judgment provided that all proceeds from the sale of this residence shall be equally divided by the parties after accounting for the expenses allocated to each party as stated above. The trial court failed to consider the required factors under statute. The appeals court remanded the credit/setoff issue for further proceedings.  


Case:              Topel v. Topel
Court:             Fifth District Court of Appeal.
Trial Judge:   Sally D.M. Kest.
Attorneys:      Sherri K. Dewitt, Marcia K. Lippincott.
Issues:            Child Support, Spousal Support.

Holding:   Although trial judges have broad discretion in setting temporary alimony awards, any such award must be supported by competent, substantial evidence that demonstrates the need for support and the paying spouse's ability to pay. The determination of the ability to pay alimony should be based on the party's net income. In this case, the trial court erred in relying on the gross income figure for the Former Husband, and ordering a temporary support award which exceeded his ability to pay. The appeals court vacated the temporary relief order and remand for reevaluation of all issues and the Former Husband making full and current disclosure of his income and expenses.


Case:              Berry v. Berry
Court:             First District Court of Appeal.
Trial Judge:   Angela C. Dempsey.
Attorneys:      William E. Whitlock, III, Ethan Andrew Way.
Issues:            Dissolution, Procedure.

Holding:  Florida Rules of Judicial Administration provide that prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration. Such a motion must be filed within 20 days of the order of disqualification, unless good cause is shown for a delay in moving for reconsideration or other grounds for reconsideration exist. In this case, the trial court erred in granting further relief for the Former Wife while the appeal was pending. Specifically, the Former Wife appealed an order denying her motion to vacate the final judgment of dissolution of marriage and set aside the parties’ martial settlement agreement. Then, while the appeal was pending, the trial court granted her petition for writ of prohibition upon finding that an ex parte conference held during a hearing on her motion to vacate constituted a legally sufficient basis for the judge’s disqualification. The appeals court held that, pursuant to the Florida Rules of Judicial Administration, the proper procedure would be for the Former Wife to seek relief by filing a motion requesting the successor judge to reconsider the disqualified judge’s order. However, since she was precluded from filing such a former motion pending the appeal, the court remanded with directions that she be enabled to file her motion within twenty days of the issuance of the appeals court ruling. 


Case:              Oliver v. Stufflebeam
Court:             Third District Court of Appeal.
Trial Judge:   George A. Sarduy.
Attorneys:      Cristina Alonso, Elizabeth F. Schwartz, Daniel B. Rogers, Shannon P. Minter.
Issues:            Dissolution, Same-Sex Marriage. 

Holding:  Florida law does not recognize the validity of same-sex marriages. As such, in Florida, a petition for dissolution of marriage lacks a case or controversy, and therefore standing before the courts. Given Florida’s exclusive right, subject only to the confines of the Federal Constitution, to define both marriage and its dissolution, and the state of Florida’s recognition of marriage as only between a man and a woman, then same-sex couples do not have standing to seek the dissolution of a marriage that, by Florida law, does not exist. An action for annulment may lie insofar as, in granting an annulment, Florida typically determines the validity of a marriage in accordance with laws of the place where the marriage occurred. However, a court need not recognize as valid marriage which is valid in the jurisdiction where consummated if such recognition would affront the public policy of the forum state. In this case, the trial court was correct in determining that a petition for dissolution of marriage lacks a case or controversy requiring the expenditure of judicial labor. The appeals court affirmed the dismissal of the petition for dissolution. 


Case:              In Re: the adoption of K.A.G
Court:             Fifth District Court of Appeal
Trial Judge:   Alicia Latimore
Attorneys:     Mark M. O’Mara, Lorna M. Truett, Alyssa Flood, Bryan S. Gowdy, Jessie L. Harrell, Thomas Wade Young, John R. Hamilton, Jamie Billotte Moses
Issues:            Adoption, Termination of Parental Rights

Holding:  Under Florida statute, a child’s best interests are the paramount consideration when the court considers an adoption. The standard of review in a termination of parental rights case is highly deferential. The appeals court will review a judgment of adoption for substantial, competent evidence. A trial court’s finding of clear and convincing evidence will not be overturned unless it may be said that, as a matter of law, no one could reasonably find such evidence to be clear and convincing.

Additionally, Florida statute allows the trial court to terminate parental rights pending adoption if it determines, by clear and convincing evidence, and supported by written findings, that the parent has executed a valid consent to adoption. Such consent shall be obtained under and according to the requirements of relevant Florida statute. Therefore, before the trial court can consider the best interests of the child, it must first determine that the parent’s consent was properly given. A court may consolidate as many issues as is practical in adoption and dependency/termination proceedings and to conduct joint hearings or trials of any issues in related family cases. 

Finally, a trial court is authorized, in its sound discretion, to appoint a guardian ad litem for a child in an adoption proceeding. Courts have the inherent authority to protect children by appointing guardians ad litem when appropriate.

In this case, the trial court erred when it dismissed the adoption petition of the child’s Grandmother as it failed to find that Father’s consent to the adoption was, or was not, valid. If the trial court determined Father’s consent was valid, it should have then determined, in the same proceeding, whether the Grandmother should be allowed to adopt the Child. The trial court had before it two separate questions: (1) whether the Father’s parental rights could be terminated based upon his consent; and (2) if so, was adoption by the Grandmother in the Child’s best interests. Different evidentiary burdens of proof apply to each determination. The termination of parental rights must be proven by clear and convincing evidence. The best interests determination is to be proven by a preponderance of the evidence. The trial court further erred in its determination that it was not authorized to appoint a guardian ad litem for the Child. In fact, the relevant statute authorizes the trial court, in its sound discretion, to appoint a guardian ad litem for a child in an adoption proceeding. In addition, courts have the inherent authority to protect children by appointing guardians ad litem when appropriate. However, the trial court was correct in its determination that the Father’s consent to termination of his parental rights was not unconditional, but rather, was conditioned on the trial court granting Grandmother’s petition to adopt Child.

The matters were remanded with directions that, if the trial court concludes that the adoption by the Grandmother is not in the Child’s best interests, then the Father’s consent to the termination of his parental rights is deemed withdrawn. Finally, the recent adoption of Florida Family Law Rule of Procedure amendments allow a court to consolidate as many issues as is practical in adoption and dependency/termination proceedings and to conduct joint hearings or trials of any issues in related family cases. 


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